Another Judge Says No to Village at Grand Traverse

Rodgers scolds former trustees for ignoring rules

July 8, 2005 | Great Lakes Bulletin News Service

MLUI

The court decision may help Acme Township officials encourage national companies to agree to more compact designs like the ones Target and Barnes and Noble used in Gaithersburg, Maryland.

TRAVERSE CITY — Acme Township residents intent on directing future commercial and residential development into a compact, northern Michigan-style town center won a circuit court decision on Wednesday that strongly supports their efforts.

The ruling, by a Grand Traverse County Circuit Court judge, nullifies a special use permit issued last October by the lame duck Acme Township Board of Trustees. Acting over the vehement and sustained objections of area residents who had just voted them out of office over the issue, the board had approved a 182-acre, big-box and suburban-style commercial and residential development. Opponents of the development, known as the Village at Grand Traverse, said the project violated both the letter and the spirit of the township’s updated master plan and zoning ordinance.

The decision, by Circuit Court Judge Philip E. Rodgers, Jr., is rife with consequences. In siding with the Concerned Citizens of Acme Township, the group that sued both the township and the developers, Judge Rodgers dealt a major setback to the company’s two-year campaign to convince township residents that the project really is what the community wants. The judge’s decision strongly affirmed the right of citizens to maintain control over how their community manages commercial and residential growth. And the decision also significantly raises the stakes on an Aug. 2 referendum that, if passed, would confirm a nine-month moratorium on approving or building big-box stores anywhere in Acme Township.

Ken Petterson, an attorney for the developers, called the decision "unfortunate" and said it would be appealed, according to the Traverse City Record Eagle.

"We think the judge is wrong," he told the newspaper. "The master plan talks about a superstore, it talks about theaters, shopping and hotels ... all the elements of our plan are in there."

If the decision survives the appeals process, it will mark another turning point in a campaign by citizen groups across northwest Lower Michigan -- the fastest growing region in the Midwest -- to protect the uncommonly beautiful area from sprawling development. In the past 18 months, citizens in the Traverse City area stopped a proposed sprawl-spreading highway and bridge from being built across a wild river valley south of town; citizens in Manistee stopped a proposed huge, coal-fired power plant that would have been built within the city limits; and citizens in Charlevoix convinced Wal-Mart to cancel plans for building a big-box store on the outskirts of their town.

A Sweeping, Scathing RulingUnlike a previous decision by another local judge that temporarily stopped the project because of procedural and other technical errors, Judge Rodgers’ ruling hit hard at the project itself. It said that the Village at Grand Traverse proposal had little to do with what Acme Township’s master plan actually envisions for developing a brand new town center on property located along M-72 at Lautner Road. Using scathing language, the judge said that, “nothing in the record before the court explains how the project as approved is claimed to be consistent with the traditional village concept embodied in the specific Master Plan.” Repeatedly calling the Village a “regional shopping mall,” he said it simply would not preserve Acme’s traditional rural atmosphere nor lead to a new town center similar to that of nearby Elk Rapids and Suttons Bay, towns specifically mentioned as models in the master plan, which was adopted in 1999.

But Judge Rodgers was just as critical of the lame-duck township trustees who approved the Village plan late last year, just two months after they had been soundly defeated in a primary contest that served as a referendum on their support of the proposal. The judge said that the trustee’s decision paid little of the attention to the economic, environmental, and transportation considerations that the town’s special use ordinances required. He also agreed with the Concerned Citizens of Acme Township, who contended that the old trustees’ approval process was an attempt to prevent the new trustees from negotiating with the developers when they took office.

Judge Rodgers sharply reprimanded the former town board for so completely disregarding the township master plan.

“The notion that a township board could exercise its discretion so cavalierly and so irrevocably change the nature of the township and the county shocks the [conscience],” he wrote. “Having provided conceptual special use permit approval, the prior Township Board then stripped itself of meaningful site plan review and eliminated any meaningful control” over the project in future stages of permitting.

The Big Box Battle ContinuesThe decision, and an accompanying ruling issued by the judge concerning ballot language on an upcoming township referendum, also affects the Michigan-based Meijer Corporation. Meijer wants to build a big-box store in the Village at Grand Traverse, but it also has an alternative plan: Building its store directly across the street from the site of the proposed village center, on property it already owns. That parcel is currently zoned for commercial development, but Meijer has never formally applied to build there. Now, facing further delays or even the collapse of the village center project, the company is undoubtedly much more interested in building on its original site.

But, three months ago, the new Acme trustees enacted a nine-month moratorium on approvals of big-box stores in order to study their general economic and environmental effect as well as alternative designs that some large chains have recently embraced in order to better fit into town centers.

A township referendum upholding or striking down the board’s moratorium is scheduled for Aug. 2; proponents of the moratorium, some of them CCAT members, have formed a group, Acme Citizens for Responsible Growth, that urges a “yes” vote on the question. Some of the group's members expect that Meijer, impatient with the repeated setbacks the Village is encountering, will now launch a major campaign against the moratorium.

In a separate decision on Wednesday, Judge Rodgers approved a slight modification in the referendum’s ballot language. Meijer argued that the language was both confusing and pejorative because it referred to the kind of stores it builds as “big-box superstores.”

The judge accepted the township’s offer to change the language, so the ballot will now say: “Shall Acme Township Zoning Ordinance #131, titled ‘Moratorium on Big Box Superstores’ and establishing a 9-month moratorium on retail buildings or combinations of buildings in reserve of 50,000 square feet, be approved?”

Seeking a Graceful VictoryWhile the Village at Grand Traverse development’s court defeat is a victory for CCAT, the current township trustees, and other area residents who believe sprawling development patterns will harm their community, some also see the decision as an opportunity for developers and citizens to begin working together instead of constantly battling each other.

Paul Brink, an ACRG spokesman, said that the court’s decision “provides a real opportunity to work with the developers and form a town center that fits into the master plan.” And James Pagels, CCAT’s attorney, added that, given how much the Village’s developers have invested in their project, the time might be right for negotiation.

In fact, Mr. Brink said he and his colleagues are not necessarily opposed to Meijer building a store in Acme.

“We would want to push [Meijer’s] to create an agreeable town center,” he said.

But he also acknowledged that Meijer’s might try to build one of its standardized, 200,000 sq. ft. superstore in Acme, regardless of the court’s rulings and opposition to the usual big-box retail model by two well-organized citizen groups and a township board.

John Latella, a University of Chicago student, is a Jeff Metcalf fellow reporting and writing on the Michigan Land Use Institute’s news desk this summer. This is his first article for the Great Lakes Bulletin News Service. Reach him at john@mlui.org.